Secret Spy Court Demands Surveillance Transparency From Feds

The secret spy court at the center of NSA whistleblower Edward Snowden’s leaks today ordered the government to begin declassifying its opinions involving the Patriot Act.

The court, set up in 1978, said the move “would contribute to an informed public debate” (.pdf) by shedding light on interpretations of a surveillance law that requires the nation’s phone carriers to hand over to the NSA metadata associated with every call in the United States.

Today’s order by Judge F. Dennis Saylor IV of the Foreign Intelligence Surveillance Court (FISC) means the government likely will have to make public opinions surrounding the court’s legal interpretations of Section 215 of the Patriot Act.

As one of the most controversial provisions of the Patriot Act, the section allows the FISC to authorize broad warrants for most any type of “tangible” record, including those held by banks, doctors and phone companies.

Under the Patriot Act, the government only needs to show that the information is “relevant” to an authorized investigation. No connection to a terrorist or spy is required.

The government argues that calling metadata — such as phone numbers of both parties involved in calls, the international mobile subscriber identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls — is relevant in its War on Terror.

Rep. Jim Sensenbrenner (R-Wisconsin), who quickly ushered in the Patriot Act in the wake of the September 2001 terror attacks, never thought every telephone call would become relevant to an investigation, saying the government is posing a “dangerous version of ‘relevance.'”

The court’s ruling today was in response to a motion brought by the American Civil Liberties Union and the Media Freedom and Access Information Clinic at Yale Law School.

“For too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy,” said Alex Abdo, an ACLU staff attorney.

Meanwhile, the government declassified some FISA court opinions on Tuesday. The documents showed that the FISC had concluded that the NSA illegally gorged on U.S. phone records for three years from its “earliest days” of inception in 2006 to 2009.

The government has until Oct. 4 to identify relevant opinions to be released and begin reviewing them for declassification.

With documents provided by Snowden, the Guardian in June published a FISA court order demanding all calling metadata from Verizon. The government confirmed its authenticity and released other documents showing that the government has convinced the secret court to require all carriers to divulge their calling metadata, too.